Constitution Daily

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It's not over until January 6

November 5, 2012 by Linda Monk


Remember that crying four-year-old who said, “I’m tired of Bronco Bamma and Mitt Romney”? Her mother soothed her with the promise that “it’ll be over soon, Abbie.” Well, mom was wrong. It won’t be over until January 6, 2013. That’s the date set by statute for the electoral votes to be opened and counted at a joint session of Congress.


And even then, it won’t be over if there are any problems. One potential problem: a tie in the Electoral College. What then? According to the 12th Amendment, a tie or less than a majority winner for the president is decided by a vote of the House of Representatives. But the kicker is that each state has only one vote. So really it will be 50 state delegations each making 50 votes. Another tie, anyone? That’s eminently possible because the District of Columbia, which has three electoral votes, has no voting representation in the House.


What if a state’s vote by congressional delegation doesn’t quite match up with that state’s electoral votes? Electoral votes are winner-take-all statewide, except in Nebraska and Maine, where they are awarded by congressional district.


Currently, Nevada is leaning toward Barack Obama in the statewide polling, but in the House, Nevada’s congressional delegation would vote 2-1 in favor of the Republicans. If Nevada’s incumbents in the House are re-elected, then there could be a flip of the outcome: a state that voted for the Democrat in the Electoral College would vote for the Republican in the House tiebreaker.


But it is the newly elected House, sworn in on January 3 that votes in the case of a tiebreaker. So at least in the case of Nevada, Obama would need to win at least one new House seat on Election Day as well. This same scenario could apply to other states with congressional delegations that are closely divided: a tiebreaker in the House could flip the result of the Electoral College vote in that state. Whew!


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Another interesting twist comes with the race for vice president. In the case of a tie or a lack of a majority vote, then the Senate decides that race.


What if it ties 50-50? (Again, the District of Columbia is not represented.) Normally the vice president would resolve a tie in the Senate, as provided by the Constitution. But does anything prevent Vice President Joe Biden from voting for himself?


According to Yale Law Professor Akhil Reed Amar, a vice president was previously prohibited from voting in the case of his own impeachment, under common law principles of conflict of interest. However, that decision is made under the rules of the Senate (and not reviewable by the courts).


So once again, it becomes a question of the whether the Democrats maintain a majority in the Senate after Election Day—if they do, then they could determine the rules for whether Biden can vote for himself. Romney-Biden, anyone?


Link: Counting electoral votes in Congress


More likely than a tiebreaker is a repeat of the 2000 scenario where one state’s election results are contested. Already Republicans have fired their national firm that handled voter registration, and criminal charges have been filed against its employees for destroying registration forms of likely Democrats. This could be the grounds for another Bush v. Gore court contest in a close state. Each party is already lawyered up and ready to go.


But the decision process for contested electoral votes in a state is much different than a tiebreaker in the Electoral College.


Before 2000, this problem arose in the 1876 election, where a commission made a highly controversial decision that included a Supreme Court justice casting the key votes. Sound familiar?


Congress did not want that to happen again, so it passed a law where any protests against a state’s electoral votes would be heard during the counting of the electoral votes on January 6.


Under the law, one senator and one representative needed to vote for the joint session to hear a challenge to the contested votes. Then, after hearing the relative merits, each chamber would retire and vote by majority whether to accept that state’s electoral votes. The debate and voting had time limits, so the dispute could be resolved in a timely manner.


So why didn’t that happen in Bush v. Gore? For one thing, some leading Democrats in Congress opposed the idea right after the election. For another, George W. Bush would have won a congressional decision due to incoming Republican majorities in both the House and the Senate.


After the Supreme Court ruled against him, Vice President Al Gore asked his fellow senators not to vote with the Congressional Black Caucus (CBC) to even hear a protest against the Florida electoral votes.


Gore said it was to unify the country and accept the court’s decision. But what the nation missed, on national television, was a chance to consider charges that Florida had used race-based criteria to purge the voter rolls prior to the election.


Similar allegations of racial bias and intimidation were the issue in the 1876 election, as black voters were harassed during Reconstruction. In 2000, the CBC walked out in protest during the counting of the electoral votes, and the nation missed an important civics lesson. George W. Bush would have still been elected president, but the process would have been fully legitimate. And every voice would have been heard.


Linda R. Monk, J.D., is the author of The Words We Live By: Your Annotated Guide to the Constitution, and she was a visiting scholar at National Constitution Center.


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